Summary of Werling v. Sandy, 17 Ohio St. 3d 45 (1985)

Facts:  P brings an action for wrongful death against the D.  P claims that due to the negligence of D, P’s child was stillborn.

Issue: Under the wrongful death statute, can P recover if the decedent was a stillborn fetus?

Holding: Yes

Rationale: According to the court, a viable fetus falls under the wrongful death statute. “It is logically indefensible as well as unjust to deny an action where the child is stillborn, and yet permit the action where the child survives birth but only for a short period of time.”  Furthermore, ruling the other way will reward the tortfeasor by allowing him to escape liability upon an increase in the severity of the harm, if such harm results in death of the child.

Concurrence: The court in this opinion should set a clear limit as to in which period of pregnancy can the fetus be covered under the statute.